In Gathers v. K & K Family Ventures, LLC, Case No. 2:24-cv-4422-RMG, 2025 WL 892773 (D.S.C. March 24, 2025), the court declined to adopt a Magistrate’s Report & Recommendation, and held that plaintiff sufficiently alleged a constructive discharge claim, arising from alleged sexual harassment.
From the decision:
The Court declines to adopt the portion of the R & R related to the constructive discharge claim. The complaint plausibly alleges repeated acts of sexual harassment, which included repeated lewd comments, sexual advances, and vulgar innuendos. (Dkt. No. 1 at ¶ 12, 13, 21). Plaintiff alleges that she was transferred to a location away from her supervisor after she reported his sexual harassment of her, but subsequently the supervisor was transferred to her work location and the harassment resumed. Plaintiff alleges that when she went to her manager to express concern about having to work again with the supervisor, the manager allegedly “laughed in Plaintiff’s face.” (Id. at ¶ 16).
It is well settled that a constructive discharge case involving alleged sexual harassment requires more than merely a showing of a hostile work environment. To establish a constructive discharge claim, Plaintiff must show that her working conditions are so intolerable that a reasonable person in her position would feel compelled to resign and did, in fact, resign. Pennsylvania State Police v. Suders, 542 U.S. 129, 146-7 (2004). “ ‘Intolerability’ is not established by showing merely that a reasonable person, confronted with the same choices as the employee, would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign.” Perkins v. International Paper Company, 936 F.3d 196, 211-212 (4th Cir. 2019). Frequency of alleged conduct is relevant and is more likely to show intolerability than isolated or infrequent conduct. Evans v. International Paper, 936 F.3d 183, 193 (4th Cir. 2019). A failure of an employee to address sexual harassment may contribute to a finding of an intolerable workplace, particularly where the employer required the employee to continue working with the harasser. Dixon v. Boone Hall Farms, Inc., 2019 WL 6130472 at *4 (D.S.C. 2019). Further, sexual harassment by a supervisor is a relevant factor for consideration in evaluating the severity of the workplace misconduct. See, Pennsylvania State Police v. Suders, 542 U.S. at 143-146.
The Court finds, when viewing the evidence in a light most favorable to the non-moving party and taking each plausibly alleged fact as true, dismissal of this constructive discharge claim at the Rule 12(b)(6) stage is not appropriate. Plaintiff’s allegations are sufficient at this stage to allege an objectively intolerable situation of persistent and humiliating sexual harassment that no reasonable person should be expected to tolerate and is the type of workplace environment in which a victim would feel she had no choice but to resign. The alleged absence of the employer’s response to the report of repeated sexual harassment, the requirement that Plaintiff work with her harasser, and the fact that the alleged harasser had been at some point Plaintiff’s supervisor all support the Court’s denial of the Defendants’ motion to dismiss.
The court concluded by nothing that while “[f]urther discovery may or may not support the Plaintiff’s claims … at this stage she is entitled to have the opportunity to pursue her claim of constructive discharge.”